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Trump’s Fox Legal Hero Says Syria Attack Illegal & Unconstitutional

7:00am

The so-called great legal mind Trump quoted in his tweet about Obama wiretapping him now says the Trump attack on Syria was illegal and unconstitutional, and of course Trump never says a word about it, he just ignores it. He went to the O’Reilly crisis management school, quote them as a great source if they say something good about you, ignore them when they say something bad.

Former Judge Andrew P. Napolitano write this on foxnews.com Wednesday:

Last week, as Holy Week was approaching, the United States launched 59 cruise missiles at a Syrian airfield.

Trump argued that the gas could only have been deployed intentionally by the Syrian government on its own people and that that behavior was so repellant, so contrary to civilized moral norms, so disruptive to the world order as to constitute a national security threat to the United States — hence his use of force. Was his action legal?

Syria, along with the United States, is a signatory to the United Nations Charter. The U.N. Charter is a treaty signed by President Harry Truman and ratified by the U.S. Senate. Under the Constitution, treaties are the supreme law of the land, alongside the Constitution, and the federal government has a moral and legal obligation to be bound by them.

The U.N. Charter limits member nations use of military force to defensive responses to actual attacks, pre-emptive strikes prior to nearly certain attacks and correctives pursuant to U.N. consent or pursuant to another treaty obligating military force to help an ally.

Under this international law, military force must be a last resort, used only when necessary to fight back or to prevent an imminent attack. It also must be proportional to the harm it seeks to eradicate and be likely to produce the result it seeks. Anything short of this violates international law, to which the U.S. is bound by numerous treaties.

Syria is not a threat to the U.S., nor is it likely to become one. Nor is the argument that we needed to send a message to Syria lest it use poison gas on the U.S. a valid legal argument or a realistic political one. Were this subjective fear a valid legal basis for the use of military force, the president could send missiles anytime and anywhere at anyone or anything with legal impunity.

The president’s revulsion at the sight of children suffering from the effects of poison gas is an emotional reaction — a very human and utterly normal one. Yet it in no way legally justifies an attack on a sovereign nation.

In addition to various treaties, the president is subject, of course, to the Constitution, which provides that only Congress can declare war. Yet Congress gave the president a small window in which to use military force on his own in the War Powers Resolution of 1973.

That law was written in the midst of President Richard Nixon’s undeclared war in Cambodia to limit the president’s emergency use of military force absent a declaration of war from Congress to defensive strikes, pre-emptive strikes and treaty obligations.

Did Trump have all the intelligence he needed in front of him before he attacked Syria? Apparently not. Did he use proportional force defensively or pre-emptively to prevent harm to the U.S.? Clearly not.

Can he legally use military force to punish or to teach a lesson to another sovereign state that poses no threat to the U.S.? Absolutely not, or there will be no end to government violence.